Date: Thu, 3 Feb 1994 02:24:31 -0500
From: BITNET list server at BITNIC (1.7f)
Subject: File: "LEGAL COUNSEL"
To: gnu@cygnus.com
CREN Information Center LEGAL COUNSEL Feb. 21, 1990
Suite 600, 1112 Sixteenth St, NW, Washington, DC 20036 (202)872-4200
Legal Aspects of Linking BITNET to Foreign Countries
The network access to foreign countries (especially those which may
have restrictions placed upon the information which can legally be sent
to them) which is now possible through CREN networks places significant
legal responsibilities on CREN Members and Affiliates to ensure that
they do not violate federal law by transmitting material to such foreign
countries which is not allowed under current law and federal policy.
The definitive policy statement regarding what data may be freely
distributed is provided by the US Department of Commerce Export
Administration Regulations, of which section 779.3, "General License
GTDA; Technical Data Available to All Destinations" defines that
information which may be distributed without special license from the
Department of Commerce. It is the responsibility of each CREN Member
and Affiliate to ensure that it abides by these regulations in all
respects.
The following opinion from CREN counsel supplements the letter of
clarification to CREN from the US Department of Commerce and the GTDA
policy statement defining General Technical Data Availability to provide
CREN Members and Affiliates with an understanding of the legal issues of
which they should be aware in using the networks for communication
abroad. These three documents are all available from LISTSERV@BITNIC as
the files LEGAL COUNSEL, LEGAL COMMERCE, and LEGAL GTDA, respectively.
CREN Members and Affiliates are strongly advised to familiarize
themselves with these documents and to take whatever steps are necessary
to ensure that their staff and students are not in violation of the
federal regulations in their use of the networks.
Legal Aspects of Linking BITNET to East Block Nations
Opinion of Counsel
OPINION MEMORANDUM
TO: Ira Fuchs, President
CREN Board of Trustees
DATE: February 7, 1990
FROM: Edward J. Bergman, Esquire
CREN Corporate Counsel
RE: Link to Eastern Europe and PRC
This memorandum is in response to your request for an opinion of
counsel regarding network connection by entities within Eastern European
Countries and The People's Republic of China.
Following review of the United States Department of Commerce,
Bureau of Export Administration, letter to Jim Conklin, dated January
18, 1990, hereafter "The Commerce Letter" (Exhibit A); The Export
Regulation Act, USCA, Title 50, Appendix, Sections 2401 et seq; the
General License GTDA, 15 CFR Part 779, Federal Register Vol. 54, No.
190, October 3, 1989, (Exhibit B); and telephone conferences with the
Department of Commerce, we offer the following review and evaluation:
Broadly speaking, the General License GTDA permits the exportation
of non-proprietary information consisting of three principal categories:
a. Publicly available information
b. Fundamental research
c. Educational information
We will refrain from restating or paraphrasing the General License
GTDA which is, instead, attached as Exhibit "A" hereto. The salient
common characteristic of the aforementioned categories is the lack of
proprietary restrictions upon access to the information in question.
Thus "fundamental" research generates information which is "ordinarily
published and shared broadly within the scientific community," and
"educational information" comprehends information released "by
instruction in catalog courses and associated teaching laboratories of
academic institutions." "Publicly available information" constitutes
the broadest category comprehended within the General License GTDA and
is well defined in Sec. 779.3(b). Narrower categories are covered by
Sec. 779.3(e), (f) and (g).
The information carried over the network will almost universally
qualify for the licensing protection of the GTDA unless and until CREN
decides to add proprietary data bases at some future time. CREN member
guidelines already prohibit use of the network for "commercial traffic".
Presently, CREN does not disseminate or export technical data as an
entity since CREN does not undertake activities other than internal
organization, policy making and membership related matters through its
Board of Trustees and its prime contractor, EDUCOM. The members, not
CREN, are the prospective exporters within this format.
Logically, and in accordance with The Commerce letter, the
foregoing structure determines that CREN's principal, if not sole
responsibility, is communication to the membership of applicable
statutes and regulations governing restrictions on exportation of
information. CREN is thus encouraged to transmit or publish the General
License GTDA over the network.
Perhaps the most troublesome and elusive aspect of The Commerce
letter deals with its elaboration of "Bitnet" responsibilities.
"Bitnet" is burdened by a "level of care" commensurate with its
organizational structure in which members elect "management", "use
guidelines" are established, and Trustees or the prime contractor could,
at times, learn of the content of transmitted information. That "level
of care", however, appears limited to reportage of prospective member
violations which are known or should be known by "Bitnet" to be
forthcoming.
The Commerce Letter evinces confusion about what or who "Bitnet"
is, i.e. the members, the Board, and/or the prime contractor. It
mistakenly refers to "Bitnet employees." Conferences with the Department
of Commerce reveal that the problem lies in a lack of actual guidelines
or regulations on the duty of care issue. This paucity of data is not
likely to be remedied. In practice, should a Trustee or a
representative of the prime contractor know of a prospective violation
or have reason to know of a prospective violation, and fail to prevent
or report same, CREN could be prosecuted for said violation. If a
member knows of a prospective violation or has reason to know of a
prospective violation by another member and fails to report same, the
passive but aware member would almost certainly not be prosecuted unless
it received a benefit from the violation, either pecuniary or in the
sense, for example, that it was collaborator in wrongfully disseminated
research data. Without some connection between the members regarding
the improperly disseminated information, prosecution of the non-
reporting, but aware member, would apparently be deemed too remote.
No regulation or stated opinion of the Department of Commerce
imposes a duty on CREN to actively monitor network transmission.
Sanctions for violations of the Export Regulations Act, Act and
regulations promulgated thereunder are covered by Section 2410 of the
Act. Three categories of sanctions exist. Ordinary violations which
are not willful are punished by fines of "not more than five times the
value of the exports involved or $50,000.00, whichever is greater, or
imprisoned not more than 5 years, or both." (Corporations cannot be
imprisoned and, assuming we do not have a violation by an individual
acting outside the scope of his corporate duties, it is almost
inconceivable that incarceration would be an issue). Willful violations
involve somewhat more complex sub-categories but, in the worst instance,
expose the corporate offender to fines up to five times the value of the
exports involved or $1,000,000.00, and the individual violator to fines
up to $250,000.00 or imprisonment for up to 10 years, or both. Civil
penalties are also authorized up to $10,000.00 for each violation along
with potential suspension or revocation of authority to export.
In conclusion, counsel recommends that the proposed connection of
entities within Eastern European Countries and The People's Republic of
China to the network proceed via entertainment of such applications for
processing according to existing membership guidelines. It is further
recommended that the General License GTDA Section 2410 of the Export
Regulation Act, the Commerce Letter and the Memorandum Opinion of
Counsel be disseminated to the membership over the network. All
interested parties should be aware that a conservative approach mandates
that any questions or gray areas be the subject of inquiries addressed
to counsel.